What has five penises, white hair, a black robe, and an ambitious respect for life? Unfortunately, the majority does. On April 18, 2007, the Supreme Court Justices voted, in a five to four opinion, to uphold the “Partial Birth” Abortion Ban Act that President Bush put into law in 2003. It is the first time the court has upheld a ban on a specific abortion procedure since 1973, when the landmark case of Roe vs. Wade established a woman’s constitutional right to an abortion.
I was curious to read what the justices had to say for themselves, so I went online and skimmed the court’s majority and dissenting opinions. (Get a cup of coffee; it’s seventy-three legal-jargoned pages long!) The five in the majority made their case by asserting that the banned procedure, known medically as “intact dilation and extraction” (D&E) was not upholding the States “respect for the dignity of human life” and was getting a little too close to infanticide for comfort. Intact D&E involves removing the fetus in an intact condition rather than dismembering it. Both procedures are used to terminate pregnancies in the second trimester and are therefore relatively rare; eighty-five to ninety percent of abortions take place within the first trimester.
Although the ban will only affect a small proportion of women seeking abortions, there was a much deeper message in Justice Anthony Kennedy’s written majority opinion that really made my stomach hurt. It has to do with the conflicted idea that this ban “expresses respect for the dignity of human life.”
Because, after about page five or six of the ruling, you have to wonder whose life is getting the respect. Even though the American College of Obstetricians and Gynecologists, the American Public Health Association, and the California Medical Association attest that “intact D&E carries meaningful safety advantages over other methods,” the court made no exception to protect a woman’s health. That means that not doing the procedure puts a woman at risk, but doing the procedure could land a doctor in jail for two years. That’s not much respect for the views or decisions of the medical community, who the justices disparagingly refer to as “abortion doctors.” Would the justices refer to urologists as “prostate doctors?” I can just see Rodney Dangerfield now, throwing up his arms in the name of all obstetric gynecologists and screaming, “No respect!”
Then there is the disrespectful use of the phrase “partial birth abortion.” According to the American Medical Association, this is not a medical term. It is however, a term generated by the anti-abortion movement to shift the focus away from the rights of women to the rights of fetuses, thereby chipping away at the very basis of Roe versus Wade. In their zealousness to respect fetal life, the justices forgot to respect the reason why many women get second-trimester abortions. This can include conditions that threaten the health of the mother and fetal anomalies that do not appear until later in a pregnancy and will most likely result in serious infant defects or death.
Perhaps most disturbing is the idea that by banning this form of abortion, the justices are actually helping women. They are claiming to protect us from the “severe depression and lack of self esteem” that follow an abortion, even though there is no medical evidence to prove that these ailments occur. (See “Is There A Post-Abortion Syndrome?”) And, because women may be so burdened with emotional baggage prior to getting an abortion, they are protecting us from a procedure which we may not really understand, and later come to regret.
“It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
The sneaking paternalistic tone in this statement assumes little respect for a woman’s ability to make an informed choice and a “father knows best” morality that can negatively affect a woman’s health and well-being. (See “When Plan B Isn’t Available, What’s Plan C?”)
Justice Ruth Bader Ginsburg, writing for the four dissenters, noted that in prior cases, the Supreme Court established that the ability of a woman to realize her full potential is intimately connected to her ability to control her reproductive life. “Thus,” she writes, “Legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course and thus to enjoy equal citizenship stature.”
Equal citizenship? Control of one’s destiny? There is no greater form of respect. If the justices were really out to protect the sanctity of life, perhaps they should start with ours.
